BILL REQ. #:  H-0984.3 

Read first time 02/02/2007.   Referred to Committee on Transportation.

     AN ACT Relating to drug and alcohol testing of commercial vehicle drivers involved in motor vehicle accidents; amending RCW 46.25.090, 46.25.120, and 46.25.170; adding a new section to chapter 46.25 RCW; and declaring an emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   A new section is added to chapter 46.25 RCW to read as follows:
     (1) A person may not drive, operate, or be in physical control of a commercial motor vehicle with the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, in his or her blood and be involved in a motor vehicle accident in which there is:
     (a) A human fatality;
     (b) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
     (c) One or more motor vehicles that incur disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
     (2) Law enforcement or appropriate officials shall issue an out-of-service order valid for twenty-four hours against a person who drives, operates, or is in physical control of a commercial motor vehicle with the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, in his or her blood and is involved in a motor vehicle accident in which subsection (1)(a), (b), or (c) of this section occurs, or who refuses to take a test to determine the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, in his or her blood under RCW 46.25.120(3).
     (3) It is an affirmative defense to a violation of subsection (1) of this section, which the defendant must prove by a preponderance of the evidence, that the defendant had a valid prescription for any controlled substance consumed, and that the defendant consumed the controlled substance according to the prescription's directions and warnings.

Sec. 2   RCW 46.25.090 and 2006 c 327 s 4 are each amended to read as follows:
     (1) A person is disqualified from driving a commercial motor vehicle for a period of not less than one year if a report has been received by the department pursuant to RCW 46.20.308 or 46.25.120, or if the person has been convicted of a first violation, within this or any other jurisdiction, of:
     (a) Driving a motor vehicle under the influence of alcohol or any drug;
     (b) Driving a commercial motor vehicle while the alcohol concentration in the person's system is 0.04 or more, or driving a noncommercial motor vehicle while the alcohol concentration in the person's system is 0.08 or more, or is 0.02 or more if the person is under age twenty-one, as determined by any testing methods approved by law in this state or any other state or jurisdiction;
     (c) Leaving the scene of an accident involving a motor vehicle driven by the person;
     (d) Using a motor vehicle in the commission of a felony;
     (e) Refusing to submit to a test or tests to determine the driver's alcohol concentration or the presence of any drug while driving a motor vehicle;
     (f) Driving a commercial motor vehicle when, as a result of prior violations committed while operating a commercial motor vehicle, the driver's commercial driver's license is revoked, suspended, or canceled, or the driver is disqualified from operating a commercial motor vehicle;
     (g) Causing a fatality through the negligent operation of a commercial motor vehicle, including but not limited to the crimes of vehicular homicide and negligent homicide;
     (h) Driving a commercial motor vehicle with the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, in his or her blood and being involved in a motor vehicle accident in which there is:
     (i) A human fatality;
     (ii) Bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or
     (iii) One or more motor vehicles that incur disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle.
     If any of the violations set forth in this subsection occurred while transporting hazardous material, the person is disqualified for a period of not less than three years.
     (2) A person is disqualified for life if it has been determined that the person has committed or has been convicted of two or more violations of any of the offenses specified in subsection (1) of this section, or any combination of those offenses, arising from two or more separate incidents.
     (3) The department may adopt rules, in accordance with federal regulations, establishing guidelines, including conditions, under which a disqualification for life under subsection (2) of this section may be reduced to a period of not less than ten years.
     (4) A person is disqualified from driving a commercial motor vehicle for life who uses a motor vehicle in the commission of a felony involving the manufacture, distribution, or dispensing of a controlled substance, as defined by chapter 69.50 RCW, or possession with intent to manufacture, distribute, or dispense a controlled substance, as defined by chapter 69.50 RCW.
     (5)(a) A person is disqualified from driving a commercial motor vehicle for a period of:
     (i) Not less than sixty days if:
     (A) Convicted of or found to have committed a second serious traffic violation while driving a commercial motor vehicle; or
     (B) Convicted of reckless driving, where there has been a prior serious traffic violation; or
     (ii) Not less than one hundred twenty days if:
     (A) Convicted of or found to have committed a third or subsequent serious traffic violation while driving a commercial motor vehicle; or
     (B) Convicted of reckless driving, where there has been two or more prior serious traffic violations.
     (b) The disqualification period under (a)(ii) of this subsection must be in addition to any other previous period of disqualification.
     (c) For purposes of determining prior serious traffic violations under this subsection, each conviction of or finding that a driver has committed a serious traffic violation while driving a commercial motor vehicle or noncommercial motor vehicle, arising from a separate incident occurring within a three-year period, must be counted.
     (6) A person is disqualified from driving a commercial motor vehicle for a period of:
     (a) Not less than ninety days nor more than one year if convicted of or found to have committed a first violation of an out-of-service order while driving a commercial vehicle;
     (b) Not less than one year nor more than five years if, during a ten-year period, the person is convicted of or is found to have committed two violations of out-of-service orders while driving a commercial motor vehicle in separate incidents;
     (c) Not less than three years nor more than five years if, during a ten-year period, the person is convicted of or is found to have committed three or more violations of out-of-service orders while driving commercial motor vehicles in separate incidents;
     (d) Not less than one hundred eighty days nor more than two years if the person is convicted of or is found to have committed a first violation of an out-of-service order while transporting hazardous materials, or while operating motor vehicles designed to transport sixteen or more passengers, including the driver. A person is disqualified for a period of not less than three years nor more than five years if, during a ten-year period, the person is convicted of or is found to have committed subsequent violations of out-of-service orders, in separate incidents, while transporting hazardous materials, or while operating motor vehicles designed to transport sixteen or more passengers, including the driver.
     (7) A person is disqualified from driving a commercial motor vehicle if a report has been received by the department under RCW 46.25.125 that the person has received a verified positive drug test or positive alcohol confirmation test as part of the testing program conducted under 49 C.F.R. 40. A disqualification under this subsection remains in effect until the person undergoes a drug and alcohol assessment by a substance abuse professional meeting the requirements of 49 C.F.R. 40, and the person presents evidence of satisfactory participation in or successful completion of a drug or alcohol treatment and/or education program as recommended by the substance abuse professional, and until the person has met the requirements of RCW 46.25.100. The substance abuse professional shall forward a diagnostic evaluation and treatment recommendation to the department of licensing for use in determining the person's eligibility for driving a commercial motor vehicle. Persons who are disqualified under this subsection more than twice in a five-year period are disqualified for life.
     (8)(a) A person is disqualified from driving a commercial motor vehicle for the period of time specified in (b) of this subsection if he or she is convicted of or is found to have committed one of the following six offenses at a railroad-highway grade crossing while operating a commercial motor vehicle in violation of a federal, state, or local law or regulation:
     (i) For drivers who are not required to always stop, failing to slow down and check that the tracks are clear of an approaching train;
     (ii) For drivers who are not required to always stop, failing to stop before reaching the crossing, if the tracks are not clear;
     (iii) For drivers who are always required to stop, failing to stop before driving onto the crossing;
     (iv) For all drivers, failing to have sufficient space to drive completely through the crossing without stopping;
     (v) For all drivers, failing to obey a traffic control device or the directions of an enforcement officer at the crossing;
     (vi) For all drivers, failing to negotiate a crossing because of insufficient undercarriage clearance.
     (b) A person is disqualified from driving a commercial motor vehicle for a period of:
     (i) Not less than sixty days if the driver is convicted of or is found to have committed a first violation of a railroad-highway grade crossing violation;
     (ii) Not less than one hundred twenty days if the driver is convicted of or is found to have committed a second railroad-highway grade crossing violation in separate incidents within a three-year period;
     (iii) Not less than one year if the driver is convicted of or is found to have committed a third or subsequent railroad-highway grade crossing violation in separate incidents within a three-year period.
     (9) A person is disqualified from driving a commercial motor vehicle for not more than one year if a report has been received by the department from the federal motor carrier safety administration that the person's driving has been determined to constitute an imminent hazard as defined by 49 C.F.R. 383.5. A person who is simultaneously disqualified from driving a commercial motor vehicle under this subsection and under other provisions of this chapter, or under 49 C.F.R. 383.52, shall serve those disqualification periods concurrently.
     (10) Within ten days after suspending, revoking, or canceling a commercial driver's license or disqualifying a driver from operating a commercial motor vehicle, the department shall update its records to reflect that action.

Sec. 3   RCW 46.25.120 and 2006 c 327 s 5 are each amended to read as follows:
     (1) A person who drives a commercial motor vehicle within this state is deemed to have given consent, subject to RCW 46.61.506, to take a test or tests of that person's blood or breath for the purpose of determining that person's alcohol concentration or the presence of other drugs.
     (2) A test or tests may be administered at the direction of a law enforcement officer, who after stopping or detaining the commercial motor vehicle driver, has probable cause to believe that driver was driving a commercial motor vehicle while having alcohol in his or her system or while under the influence of any drug.
     (3) Any person who drives a commercial motor vehicle within this state and is involved in a motor vehicle accident in which there is: (a) A human fatality; (b) bodily injury to any person who, as a result of the injury, immediately receives medical treatment away from the scene of the accident; or (c) one or more motor vehicles that incur disabling damage as a result of the accident, requiring the motor vehicle to be transported away from the scene by a tow truck or other motor vehicle shall, at the direction of a law enforcement officer, submit to a test of his or her breath or blood for the purpose of determining the alcohol concentration in his or her breath or blood and a test of his or her blood for the purpose of determining the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, in his or her blood.
     (4) The law enforcement officer requesting the test under subsection (1) of this section shall warn the person requested to submit to the test that a refusal to submit will result in that person being disqualified from operating a commercial motor vehicle under RCW 46.25.090.
     (((4))) (5) If the person refuses testing, ((or)) submits to a test that discloses an alcohol concentration of 0.04 or more, or submits to a blood test under subsection (3) of this section that discloses the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, the law enforcement officer shall submit a sworn report to the department certifying that the test was requested pursuant to subsection (1) or (3) of this section and that the person refused to submit to testing, ((or)) submitted to a test that disclosed an alcohol concentration of 0.04 or more, or submitted to a blood test under subsection (3) of this section that disclosed the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite.
     (((5))) (6) Upon receipt of the sworn report of a law enforcement officer under subsection (((4))) (5) of this section, the department shall disqualify the driver from driving a commercial motor vehicle under RCW 46.25.090, subject to the hearing provisions of RCW 46.20.329 and 46.20.332. The hearing shall be conducted in the county of the arrest. For the purposes of this section, the hearing shall cover the issues of whether a law enforcement officer had reasonable grounds to believe the person had been driving or was in actual physical control of a commercial motor vehicle within this state while having alcohol in the person's system or while under the influence of any drug, whether the person refused to submit to the test or tests upon request of the officer after having been informed that the refusal would result in the disqualification of the person from driving a commercial motor vehicle, ((and,)) if the test was administered, whether the results indicated an alcohol concentration of 0.04 percent or more or the presence of any Schedule I drug, as listed in RCW 69.50.204, or its metabolite, or Schedule II drug, as listed in RCW 69.50.206, or its metabolite, whether the person had a valid prescription for any controlled substance consumed, and whether the person consumed the controlled substance according to the prescription's directions and warnings. The department shall order that the disqualification of the person either be rescinded or sustained. Any decision by the department disqualifying a person from driving a commercial motor vehicle is stayed and does not take effect while a formal hearing is pending under this section or during the pendency of a subsequent appeal to superior court so long as there is no conviction for a moving violation or no finding that the person has committed a traffic infraction that is a moving violation during the pendency of the hearing and appeal. If the disqualification of the person is sustained after the hearing, the person who is disqualified may file a petition in the superior court of the county of arrest to review the final order of disqualification by the department in the manner provided in RCW 46.20.334.
     (((6))) (7) If a motor carrier or employer who is required to have a testing program under 49 C.F.R. 382 knows that a commercial driver in his or her employ has refused to submit to testing under this section and has not been disqualified from driving a commercial motor vehicle, the employer may notify law enforcement or his or her medical review officer or breath alcohol technician that the driver has refused to submit to the required testing.
     (((7))) (8) The hearing provisions of this section do not apply to those persons disqualified from driving a commercial motor vehicle under RCW 46.25.090(7).

Sec. 4   RCW 46.25.170 and 1989 c 178 s 19 are each amended to read as follows:
     (1) A person subject to RCW 81.04.405 who is determined by the utilities and transportation commission, after notice, to have committed an act that is in violation of RCW 46.25.020, 46.25.030, 46.25.040, 46.25.050, ((or)) 46.25.110, or section 1 of this act is liable to Washington state for the civil penalties provided for in RCW 81.04.405.
     (2) A person who violates or fails to comply with, or who procures, aids, or abets in the violation of any provision of RCW 46.25.020, 46.25.030, 46.25.040, 46.25.050, ((or)) 46.25.110, or section 1 of this act is guilty of a gross misdemeanor.

NEW SECTION.  Sec. 5   This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.